The Trustee for Grasmere Property Trust v North Sydney Council

Texts Cited: North Sydney Development Control Plan 2013

Category: Principal judgment

Parties: The Trustee for Grasmere Property Trust (Applicant)
North Sydney Council (Respondent)

Representation: Counsel:
L Cone (Solicitor) (Applicant)
K Law (Solicitor) (Respondent)
Solicitors:
Addisons (Applicant)
Matthews Folbigg Lawyers (Respondent)

File Number(s): 2024/336739

Publication restriction: No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) by The Trustee for Grasmere Property Trust (the Applicant) against the deemed refusal of their development application DA 1151/24. The development application, as amended, seeks consent for the demolition of existing structures and construction of a residential flat building containing three dwellings with associated car parking and landscaping. The development is proposed at 50 Grasmere Lane, Cremorne (Lot 1 in DP 502237) (the site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 24 February 2025. Following the conciliation conference, the Applicant made amendments to their development application responsive to the Respondent's contentions, however the conciliation was ultimately terminated and the matter listed for hearing.

3. Notwithstanding the termination of the conciliation conference, the parties continued to negotiate in relation to the form of the development and appropriate conditions of consent. These negotiations were productive. The Applicant further amended the development application in June 2025, seeking to address the Respondent's concerns. The parties continued discussions on the amended plans and reached an agreement based on the amended development application. The parties’ agreement is for the grant of consent to the application, as amended, subject to the conditions in Annexure A. The parties sought a further conciliation conference which was arranged for 27 June 2025 and the hearing was adjourned. I presided over the further conciliation conference.

4. The amended development application includes the following broad amendments:

5. Confirmation that the proposed development complies with the maximum height development standard and amendments to the upper storey to reduce bulk and scale and respond to the view impact assessment.

6. Remove the proposed car stacker and provide an additional level of basement car parking.

7. Addition of an agreed deferred commencement condition which requires a road blister in the road frontage of the property to improve safety of vehicle egress.

8. As the presiding Commissioner, I am satisfied that the decision is one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that:

9. The development application was made by The Trustee for Grasmere Property Trust on 26 June 2024. Landowners consent has been provided: s 23(1) of the EPA Reg.

10. The development was notified initially between 5 and 19 July 2024 in accordance with:

(a) the community participation requirements of section 2.22 and Schedule 1 of the Environmental Planning and Assessment Act 1979; and (b) Respondent's Community Engagement Protocol.

3. Twenty-eight submissions were received in response to the notification of the development application. The main concerns raised in the submissions can be summarised as:

(i) Traffic management concerns during construction, (ii) Geotechnical concerns with the proposed excavation, (iii) No visitor parking is proposed, (iv) Unacceptable bulk and scale of the proposed residential flat building, (v) Noise generated from the car stackers, (vi) The development causes the site to the north isolated, (vii) The development proposes significant tree removal, (viii) Amenity impacts including overlooking, view loss, loss of privacy and solar access, (ix) Traffic, access and parking impacts, (x) Development is out of character, and exceeds the height limit, and varies the setback controls. (xi) Inaccuracies between the plans and documents in the development application,

4. The amended development application was notified between 19 May and 2 June 2025. I am satisfied that the submissions have been considered in the determination of the development application by either amendment of the application or through the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

5. Section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) precludes the granting of development consent unless the consent authority has considered whether the land is contaminated. The Respondent and the Applicant agree, and I accept, that the site has a long history of residential use with no known records of contaminating activity being conducted on the site. This history is detailed in the Statement of Environmental Effects (SEE). Further, the annexed conditions include the imposition of a condition of consent requiring a hazardous material survey prior to demolition. I find that s 4.6(1) of SEPP RH is satisfied.

6. The development proposed in the development application does not meet the definition of ‘residential apartment development’ pursuant to s 144 of State Environmental Planning Policy (Housing) 2021 (SEPP Housing). Accordingly, the provisions of Ch 4 of SEPP Housing do not apply.

7. Pursuant to s 2.3 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC), Ch 2 ‘Vegetation in Non Rural Areas’ applies to the development application. Further, replacement planting is proposed in the landscaping strategy for the site. The parties agree, and I accept, that the relevant provisions of Ch 2 of SEPP BC are met.

8. Part 6.2 ‘Development in regulated catchments’ of the SEPP BC applies as the site is located with the Sydney Harbour Catchment. The parties are satisfied, and I accept with the assistance of the architectural and stormwater plans, that the proposed development will have a neutral effect on the quality of water entering the Sydney Harbour Catchment. Further, in determining the development application I am satisfied that the proposal appropriately considers the matters set out at ss 6.6, 6.7, 6.8, 6.9 and 6.10 of SEPP BC, which deal with mandatory aquatic ecology matters, impacts on periodic flooding that benefits wetlands and other riverine ecosystems, impacts on recreational land uses in the Sydney Harbour Catchment, and adverse environmental impacts on any adjacent or downstream local government areas. The parties agree, and I accept, that no clearing is proposed nor is consent sought under the Water Management Act 2000 or the Fisheries Management Act 1994. There are no known wetlands or significant aquatic ecology that will be affected by the proposed development. Further, the proposed development will not result in the release of pollutants or affect water quality in the locality nor alter the natural recession of water.

9. The development application was referred to Ausgrid in accordance with s 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI). The Respondent received a response from Ausgrid noting no objection to the proposed development application. The parties agree, and I accept, that s 2.48 of the SEPP TI is satisfied.

10. The amended development application provides BASIX Certificate 1316702M_04, dated 3 April 2025 at Tab 14, as required pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021.

11. The North Sydney Local Environmental Plan 2013 (LEP 2013) is the relevant local environmental plan that applies to the land. Pursuant to LEP 2013 the site is zoned R4 – High Density Residential zone. The proposed development is permitted with consent in the zone. As required by cl 2.3(2) of LEP 2013, in determining the development application I have considered the objectives of the R4 – High Density Residential zone.

12. Pursuant to cl 4.3: Height of Buildings the land has a prescribed maximum building height of 12m. The amended development application complies with this standard.

13. Pursuant to cl 4.4: Floor Space Ratio (FSR), the site is not subject to a maximum FSR.

14. As required by cl 6.10 Earthworks of LEP 2013, in granting consent to the development, with the assistance of the Statement of Environmental Effects and the architectural plans which form part of the development application, I have given consideration to the matters listed in subcl (3). Having considered the listed matters I am satisfied that none warrant the refusal of the development application.

15. Clause 6.12 Residential flat buildings of LEP 2013 requires that development for a residential flat building must only be granted if adjoining land which contains a single dwelling, dual occupancy or semi-detached dwelling in an R4 High Density Residential Zone is at least 900m² or on land that can be developed for the purposes of a residential flat building. The Site is located adjoining a land which contains a semi-detached dwelling (being Lots 21 and 22 DP881936 at 33 Grasmere Road, Cremorne) (Adjoining Land). As the Adjoining Land has a size of 467.4 m2 by title, which is less than 900m2, the consent authority must be satisfied that the Adjoining Land can accommodate a residential flat building. The amended development application includes a Concept Sketch of a residential flat building development on the Adjoining Property to demonstrate that development may be carried out on the adjoining land for the purposes of a residential flat building. The parties agree, and I accept, that cl 6.12 of LEP 2013 is satisfied.

16. North Sydney Development Control Plan 2013 (DCP 2013) applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of DCP 2013. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

17. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

18. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

19. The Court notes that:

20. North Sydney Council, as the relevant consent authority, has approved, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant further amending Development Application DA115/2024 to include the following documents:

| Tab | Document | Date | | 1. | Architectural Plans prepared by Floris Smith Architecture Drawing Name Drawing No. Rev. Cover Sheet DA00 10J Site Plan DA01 10J Site Analysis Plan DA02 10J Site Coverage DA03 10J Level LG3 DA04 10J Level LG2 DA05 10J Level LG DA06 10J Level G DA07 10J Level 1 DA08 10J Level 2 DA09 10J Roof DA10 10J Sections DA11 10J Sections DA12 10J Sections DA13 10J Sections DA14 10J Sections DA15 10J Sections DA16 10J Height Plane/Limit North East DA17 10J Height Plane/Limit North West DA18 10J West Elevation DA19 10J North Elevation DA20 10J East Elevation DA21 10J South Elevation DA22 10J Finishes DA23 10J Shadows March 09h00 DA24 10J Shadows March 12h00 DA25 10J Shadows March 15h00 DA26 10J Shadows June 09h00 DA27 10J Elevational Shadows June 09h00 DA28 10J Shadows June 10h00 DA29 10J Shadows June 11h00 DA30 10J Shadows June 12h00 DA31 10J Shadows June 13h00 DA32 10J Elevational Shadows June 13h00 DA33 10J Shadows June 14h00 DA34 10J Elevational Shadows June 14h00 DA35 10J Shadows June 15h00 DA36 10J Elevational Shadows June 15h00 DA37 10J View from South West DA38 10J View from South East DA39 10J View from North West DA40 10J View from North East DA41 10J Basix Certificate DA42 10J Reference Images DA43 10J Notification Drawing 1 DA44 10H Notification Drawing 2 DA45 10H Level LG2 RCP DA46 10J Level LG RCP DA47 10J Level G RCP DA48 10J Level 1 RCP DA49 10J Level 2 RCP DA50 10J Typical Construction Detail DA51 10J Excavation Comparison DA52 10J Existing plan overlay for levels DA53 10J 3D Comparisons DA54 10J Glazing Schedule DA55 10J Level G Traffic Blister DA56 10J | 20 March 2025 | | Drawing Name | Drawing No. | Rev. | | Cover Sheet | DA00 | 10J | | Site Plan | DA01 | 10J | | Site Analysis Plan | DA02 | 10J | | Site Coverage | DA03 | 10J | | Level LG3 | DA04 | 10J | | Level LG2 | DA05 | 10J | | Level LG | DA06 | 10J | | Level G | DA07 | 10J | | Level 1 | DA08 | 10J | | Level 2 | DA09 | 10J | | Roof | DA10 | 10J | | Sections | DA11 | 10J | | Sections | DA12 | 10J | | Sections | DA13 | 10J | | Sections | DA14 | 10J | | Sections | DA15 | 10J | | Sections | DA16 | 10J | | Height Plane/Limit North East | DA17 | 10J | | Height Plane/Limit North West | DA18 | 10J | | West Elevation | DA19 | 10J | | North Elevation | DA20 | 10J | | East Elevation | DA21 | 10J | | South Elevation | DA22 | 10J | | Finishes | DA23 | 10J | | Shadows March 09h00 | DA24 | 10J | | Shadows March 12h00 | DA25 | 10J | | Shadows March 15h00 | DA26 | 10J | | Shadows June 09h00 | DA27 | 10J | | Elevational Shadows June 09h00 | DA28 | 10J | | Shadows June 10h00 | DA29 | 10J | | Shadows June 11h00 | DA30 | 10J | | Shadows June 12h00 | DA31 | 10J | | Shadows June 13h00 | DA32 | 10J | | Elevational Shadows June 13h00 | DA33 | 10J | | Shadows June 14h00 | DA34 | 10J | | Elevational Shadows June 14h00 | DA35 | 10J | | Shadows June 15h00 | DA36 | 10J | | Elevational Shadows June 15h00 | DA37 | 10J | | View from South West | DA38 | 10J | | View from South East | DA39 | 10J | | View from North West | DA40 | 10J | | View from North East | DA41 | 10J | | Basix Certificate | DA42 | 10J | | Reference Images | DA43 | 10J | | Notification Drawing 1 | DA44 | 10H | | Notification Drawing 2 | DA45 | 10H | | Level LG2 RCP | DA46 | 10J | | Level LG RCP | DA47 | 10J | | Level G RCP | DA48 | 10J | | Level 1 RCP | DA49 | 10J | | Level 2 RCP | DA50 | 10J | | Typical Construction Detail | DA51 | 10J | | Excavation Comparison | DA52 | 10J | | Existing plan overlay for levels | DA53 | 10J | | 3D Comparisons | DA54 | 10J | | Glazing Schedule | DA55 | 10J | | Level G Traffic Blister | DA56 | 10J | | 2. | Landscape Plans prepared by Conzept Landscape Architects Drawing Name Drawing No. Rev. Tree Survey LP-01 Q Hardscape Plan LP-02 Q Landscaping Soil Depth Plan LP-03 Q Landscape Plan 1 – GF&LG LP-04 Q Landscape Plan 2 – Lower Ground 2 LP-05 Q Landscape Plan – Level 1 & Level 2 LP-06 Q Section A & Section B LP-07 Q Planting Palette LP-08 Q Details LP-09 Q Specification LP-10 Q | 21 March 2025 | | Drawing Name | Drawing No. | Rev. | | Tree Survey | LP-01 | Q | | Hardscape Plan | LP-02 | Q | | Landscaping Soil Depth Plan | LP-03 | Q | | Landscape Plan 1 – GF&LG | LP-04 | Q | | Landscape Plan 2 – Lower Ground 2 | LP-05 | Q | | Landscape Plan – Level 1 & Level 2 | LP-06 | Q | | Section A & Section B | LP-07 | Q | | Planting Palette | LP-08 | Q | | Details | LP-09 | Q | | Specification | LP-10 | Q | | 3. | Arboricultural Impact Assessment & Tree Protection Plan prepared by Tree Survey version 6 | 3 March 2025 | | 4. | Visual Impact Assessment and Appendix A prepared by Urbaine Design Group | 13 March 2025 | | 5. | Civil and Drainage Plans prepared by M+G Consulting Drawing Name Drawing No. Rev. Date Civil and Drainage Notes C01 2 16 May 2024 Stormwater Drainage Concept Plan C02 10 11 March 2025 Stormwater Drainage Details & Sections Sheet 1 C03 7 13 January 2025 Stormwater Drainage Details & Sections Sheet 2 C04 2 16 May 2023 Conceptional Erosion Sediment Control Plan C05 5 21 May 2024 Sediment and Erosion Control Details C06 2 16 May 2024 | | | Drawing Name | Drawing No. | Rev. | Date | | Civil and Drainage Notes | C01 | 2 | 16 May 2024 | | Stormwater Drainage Concept Plan | C02 | 10 | 11 March 2025 | | Stormwater Drainage Details & Sections Sheet 1 | C03 | 7 | 13 January 2025 | | Stormwater Drainage Details & Sections Sheet 2 | C04 | 2 | 16 May 2023 | | Conceptional Erosion Sediment Control Plan | C05 | 5 | 21 May 2024 | | Sediment and Erosion Control Details | C06 | 2 | 16 May 2024 | | 6. | Sight Distance Analysis and Grasmere Lane Speed Data prepared by Varga Traffic Planning | 20 March 2025 | | 7. | Bulk Excavation Plans prepared by M+G Consulting | 25 March 2025 | | 8. | Preliminary Construction Traffic Management Plan prepared by JMT Consulting | 11 March 2025 | | 9. | Operational Waste Management Plan prepared by Elephants Foot Consulting Revision D | 22 April 2025 | | 10. | Construction and Demolition Waste Management Plan prepared by Elephants Foot Consulting | 30 January 2025 | | 11. | Preliminary Structural Framing prepared by M+G Consulting | 10 February 2025 | | 12. | 33 Grasmere Lane Concept Sketches prepared by Floris Smith Architects | | | 13. | BASIX Certificate 1316702M_04 | 3 April 2025 | | 14. | BASIX Stamped Plans | | | 15. | NatHERS Certificates | 25 March 2025 | | 16. | Owners Consent | | | 17. | Statutory Declaration | 12 March 2025 | | 18. | Letter from Ausgrid in response section 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 | | | 19. | Letter from Sydney Water in relation to Section 73 | 18 July 2024 | | 20. | Traffic and Parking Assessment Report prepared by Varga Traffic | 26 May 2024 |

2. The Applicant provided the further amending Development Application to the Court on the date of the agreement.

3. The Court orders that:

4. The appeal is upheld.

5. The Applicant agrees to pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed within 28 days of judgment.

6. Development Application No. DA115/2024 is approved for the demolition of existing structures and construction of a residential flat building containing three dwellings with associated car parking and landscaping at 50 Grasmere Lane, Cremorne (legally known as Lot 1 in DP 502237) subject to the conditions in Annexure A.

D Dickson

Commissioner of the Court

Annexure A

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